17 N.Y.S. 645 | N.Y. Sup. Ct. | 1892
This is an appeal from an order denying a motion made by the defendants to change the place of trial from Kings county to the county of Cayuga upon condition that the plaintiff make a stipulation respecting the testimony of certain witnesses named by the defendant in the moving papers. The case is a Cayuga county case. The transactions out of which the cause of action arose were all there. All the persons who knew any of the material facts are naturally located there, and we think the moving papers made a case requiring the removal of the cause to that county. The court evidently hesitated over the denial of the motion absolutely, and required the plaintiff to stipulate that certain witnesses of the defendants would testify as the defendants stated they would in their moving papers. Such a stipulation, however, is a poor substitute for the actual presence and testimony of the witnesses before the jury, and the defendants might well hesitate to rely upon such a stipulation without producing the witnesses. We think the defendants are entitled to an opportunity to try the cause in the usual way, and to have the trial in the county of Cayuga. The order should be reversed, with $10 costs and disbursements, and the motion should be granted, with $10 costs to defendants to abide the event.
